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2013 DIGILAW 166 (RAJ)

State of Rajasthan v. Ravindra Kumar Jain

2013-01-21

BELA M.TRIVEDI

body2013
JUDGMENT 1. - The present appeal, filed under Section 96 of C.P.C. arises out of the judgment & decree dated 10.09.2012 passed by the Additional District & Sessions Judge (Fast Track) No.5, Jaipur Metropolitan (hereinafter referred to as "the trial court") in Civil Suit No.22/2012, whereby the trial has decreed the suit of the respondent-plaintiff. 2. The short facts are that the respondent-plaintiff retired from Rajasthan Judicial Services on 30.09.2008. Amongst the retiral benefits, he was paid the amount of gratuity to the tune of Rs. 3,50,000/- on 06.10.2008. According to him, the gratuity amount to be paid by the appellants-defendants was Rs. 9,47,166/- on the date of his retirement and the defendants had illegally withheld Rs. 5,97,166/-, which was subsequently paid on 25.08.2009. Hence, the respondent-plaintiff had filed the suit seeking interest @ 12% per annum on Rs. 5,97,166/- for the period of about 10 months i.e. from 01.10.2008 to 25.08.2009. The said suit was resisted by the appellants-defendants by filing the written statement contending interalia that the maximum amount payable to the plaintiff as per the RCS (Pension Rules) (hereinafter referred to as "the said Rules") was Rs. 3.50 lakhs on the date of his retirement, which was already paid to him. It was further contended that the said limit was revised to Rs. 10 lacs by the Finance Department vide the order dated 27.02.2009. The plaintiff, thereafter, for the first time contacted the defendant on 03.08.2009 and he was paid the balance amount of Rs. 5,97,166/- towards gratuity without any delay on 25.08.2009, and thus there was no delay on the part of the defendants in making the payment of gratuity amount. The appellants had also contended interalia that the appellants-defendants were not liable to pay interest on the arrears amount as per Rule 89 (5) of the said Rules. 3. The trial court vide the impugned judgment and decree dated 10.09.2012 decreed the said suit of the respondent-plaintiff and directed the appellants-defendants to pay interest @ 12% per annum on Rs. 5,97,166/- for the period from 06.10.2008 till payment. Being aggrieved by the said judgment and decree, the present appeal has been filed by the appellants-defendants. 4. It has been submitted by the learned Government Counsel, Ms. 5,97,166/- for the period from 06.10.2008 till payment. Being aggrieved by the said judgment and decree, the present appeal has been filed by the appellants-defendants. 4. It has been submitted by the learned Government Counsel, Ms. Sunita Satyarthi for the appellants that there was no delay whatsoever on the part of the appellants in making payment of balance amount of gratuity and that the respondent was already paid the balance amount on 25.08.2009 immediately on his contacting the appellants on 03.08.2009. Placing heavy reliance on the provisions contained in Rule 89(5) of the said Rules, she submitted that the maximum limit of gratuity having been increased from Rs. 3,50,000/- to Rs. 10,000,00/- by the Finance Department vide the order dated 27.02.2009, i.e. subsequent to the retirement of the respondent, no interest was payable on the arrears of the said benefit on the enhanced amount as per the said provision. According to her, even otherwise there was no delay on the part of the appellants-defendants which would entail payment of interest to the respondent. 5. The learned counsel Mr. R.K. Agarwal, Senior Advocate for the respondent-plaintiff, however submitted that though the Finance Department had raised the maximum limit of gratuity upto Rs. 10,000,00/- as per the order dated 27.02.2009, the appellants did not make the payment of the balance amount till 25.08.2009, and therefore, the respondent was entitled to the payment of interest as per the provision contained in Rule 89(1) of the said Rules. Relying upon the recommendations made by the Sethi Commission, as also the observations made by the Supreme Court, accepting the said recommendations, as also various orders passed by the Govt. in Finance Department for the implementation of the said judgment, Mr. Agarwal submitted that the respondent was entitled to the interest amount on the delayed payment of his retiral benefits, and that the trial court having rightly appreciated the evidence on record, this Court may not interfere with the impugned judgment. 6. In the instant case, the controversy moves in a very narrow compass. There are certain undisputed facts, to the effect that the respondent retired from Rajasthan Judicial Services on 30.09.2008. He was paid Rs. 3,50,000/- towards gratuity on 06.10.2008. He was further paid Rs. 5,97,166/- on 25.08.2009 towards balance amount of gratuity in view of the order dated 27.02.2009 of Finance Department. There are certain undisputed facts, to the effect that the respondent retired from Rajasthan Judicial Services on 30.09.2008. He was paid Rs. 3,50,000/- towards gratuity on 06.10.2008. He was further paid Rs. 5,97,166/- on 25.08.2009 towards balance amount of gratuity in view of the order dated 27.02.2009 of Finance Department. Therefore, as per the case of the respondent, there was delay on the part of the appellants in not making payment of the balance amount, for which he was entitled to claim the interest @ 12% per annum for the period of 10 months. 7. It is also not disputed that in compliance of the orders passed by the Supreme Court for implementation of the recommendations made by the Sethi Commission, the appellants had issued orders from time to time and as per the order dated 18.05.2005, the benefit of gratuity to the Judicial Officers was continued to be granted as per the State Rules. 8. Now as per the proviso contained in Rule 55 of the said Rules, the amount of retirement gratuity payable was to the extent of Rs. 3.5 lacs. Subsequently the Government of Rajasthan in Finance Department vide the order dated 27.02.2009 revised the said limit to Rs. 10,000,00/- under the said Rule 55, making it applicable to the RHJS, who retired on or after 01.01.2007. Thus, admittedly when the respondent retired from Judicial Service on 30.09.2008, the maximum limit of gratuity was Rs. 3,50,000/- which he was paid on 06.10.2008. It was only as per the order of Finance Department dated 27.02.2009, the said limit was revised to Rs. 10,000,00/-. The respondent thereafter was paid the balance amount of Rs. 5,97,166/- on 25.08.2009 as he was entitled to the total amount of Rs. 9,47,166/- towards the gratuity as per the revised rules and he was already paid Rs. 3,50,000/- on 06.10.2008 as per the Rules prevailing at the relevant time. Hence, there is some substance in the submission of learned counsel Mr. Agarwal for the respondent that there was delay on the part of the appellants in not making the payment of the balance amount of gratuity immediately on the issuance of the order dated 27.02.2009 of the Finance Department, however the question which falls for consideration is as to whether the respondent is entitled to the interest amount on the delayed payment and if yes at what rate. 9. 9. It was sought to be submitted by learned counsel Ms. Sunita Satyarathi for the appellants that the balance amount towards gratuity was paid to the respondent on 25.08.2009, immediately after he made the application on 03.08.2009, however the Court does not find any substance in the said submission made by the Government Counsel. As rightly submitted by learned counsel Mr. R.K. Agarwal for the respondent, the benefit available to the Judicial Officer on his retirement is not a bounty payable at the sweet will and pleasure of the Government and it is his valuable right. The grant of retiral benefits including gratuity should not depend on the application being made by the concerned judicial officer to the Government. It was the duty of the concerned officers of the appellants to give immediate effect of the order dated 27.02.2009 of the Finance Department and make payment of the balance amount of gratuity to the respondent as early as possible and the appellants should not have waited for the application of the respondent. Since there was delay of more than 60 days on the part of the appellants in making payment of the balance amount of gratuity, Rule 89(1) would come into play, which provides for the interest @ 9% per annum on the delayed payment of retiral benefits. The Court, therefore, is of the opinion that the respondent was entitled to the interest @ 9% per annum from the date the balance amount of gratuity became due and payable till it was actually paid to him. 10. Though the learned counsel Mr. Agarwal has sought to submit that the courts have awarded interest @18% on the delayed payment of retiral benefits to the Government servants, such contention cannot be accepted for the simple reason that when there is a specific provision in Rule 89(1) for payment of interest @ 9% per annum for the delayed payment of retiral benefits, the trial court should not have granted interest @ 12% per annum. Though it is true that in certain gross cases the courts have awarded higher rate of interest by way of penalty, the instant case could not be said to be such a gross case, in as much as at the most it could be said that there was delay of about 6 months, the Finance Department having issued the order on 27.02.2009, and the payment having been made by the appellants on 25.08.2009. In absence of any extraordinary circumstances of gross delay, the trial court has erred in awarding interest @ 12% per annum instead of 9% per annum to the respondent. 11. Though the learned Govt. counsel had pressed into service, the provision contained in Rule 89(5) to submit that no interest was liable to be paid on arrears amount, as the maximum limit of gratuity was enhanced subsequent to the retirement of the respondent, the Court does not find much substance in her submissions. Rule 89(5) provides that no interest on arrears of retiral benefits shall be paid, if the amount of retiral benefits is enhanced after the retirement of the Government servant, as a result of Government's decision taken subsequent to the retirement of the Government servant. However, the judicial officer cannot be left at the mercy or sweet will of the Government. If there is delay in the payment of retiral benefits without any justification beyond the period of 60 days from the date it becomes payable, as contemplated in 89(1) of the said Rules, the concerned Government servant/Judicial Officer would be entitled to the interest @ 9% per annum from the date such benefits had became due. In the instant case, the respondent having not been given the benefit of the order dated 27.02.2009 of Finance Department for more than 60 days, and was paid the balance amount of gratuity on 25.08.2009, he would be entitled to the interest @ 9% per annum as per Rule 89(1) of the said Rules. The trial court having awarded interest @ 12% per annum instead of 9%, the impugned judgment and decree deserves to be modified to the said extent. 12. In view of the above, the judgment and decree dated 10.09.2012 passed by the trial court is modified to the extent that the amount of interest shall be payable by the appellants to the respondent @ 9% per annum instead of 12% per annum. 12. In view of the above, the judgment and decree dated 10.09.2012 passed by the trial court is modified to the extent that the amount of interest shall be payable by the appellants to the respondent @ 9% per annum instead of 12% per annum. The decree be drawn accordingly. The appeal is partly allowed accordingly.Appeal Partly Allowed. *******